Civil forfeiture turns presumption of innocence upside down

If police seize your property under civil forfeiture, you must prove yourself innocent to get it returned, often waiting years before your day in court. Contrary to a criminal case, which requires proof beyond a reasonable doubt, to take your property under civil forfeiture prosecutors need only prove that it is more likely than not that your property is linked to a crime. And because it is civil proceeding, the court is not required to provide you with an attorney.

It should surprise no one that individuals caught in the nightmare of forfeiture may choose to settle rather than pay exorbitant legal fees to prove their innocence at trial. Instead, Mr. Rosenstein's "healthy measure of skepticism" should be directed at the idea of blindly trusting prosecutors to forego forfeiture actions against innocent owners, despite the direct financial incentive prosecutors have in forfeiture.

Just ask Russell Caswell. When federal prosecutors tried to seize his family-run motel, it took Mr. Caswell more than five years and $500,000 in pro bono legal assistance to have his day in court and be vindicated as an innocent owner.

Darpana M. Sheth

The writer is an attorney with the Institute for Justice, a non-profit law firm that challenges civil forfeiture.